Failure to give notice of permit application; s.87(1)(e); requirements of s.52(1)(d) and (2) in relation to giving notice to "other persons"; no individual notice given to requestor association; relevance of giving notice in other cases; relevance of whether it would be "just and reasonable" to give such individual notice; relevance of responsible authority having given more notice than required by s.52 on some occasions; suggested test for assessing required mode of giving notice; register of permit applications.

Costs; s.109 Victorian Civil and Administrative Tribunal Act 1998; relevant of nature and complexity of proceeding; relevance of arguable or test case compared to advancing untenable case.

Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Sections 52, 83B, 87 Planning and Environment Act 1987

Section 109 Victorian Civil and Administrative Tribunal Act 1998

Lot 1 on Plan of Subdivision No. 848529L being the land in Certificate of Title Volume 06979 Folio 760, Lot 1 on Plan of Subdivision No. 597457F being the land in Certificate of Title Volume 10466 Folio 959 and Crown Allotment 19A Section C Parish of Greensborough being the land in Certificate of Title Volume 06979 Folio 762.

Irregularly shaped piece of land on the northern side of the Heidelberg-Kinglake Road.

[2005] VCAT 1116

_________________

RUSSELL BYARD

SENIOR MEMBER

Ms. Adeline Lane, solicitor of the firm of Maddocks Solicitors, appeared for the responsible authority.

Ms. Jenni Bundy appeared with Mr. Kahn Franke for the Greenwedge Protection Group Incorporated.

Mr. Robert Sadler, barrister, appeared on the instructions of Kellehers Australia, solicitors, for J.A. & K.E. Donaldson.

Request under s.87 of the Planning and Environment Act 1987 (PE Act) for cancellation of a permit.

Cancellation of permit 439/2004/01P issued by the responsible authority on 12 January 2005 which permit allowed use and construction of a dwelling and shed.

Rural Conservation Zone (Schedule 3) and subject to an Environmental Significance Overlay (Schedule 1 and part of Schedule 4) under the Nillumbik Planning Scheme.

1 On 12 January 2005 the responsible authority issued a permit for the use and development of the land for the construction of a dwelling and a shed. The Greenwedge Protection Group Inc. first became aware of this permit, and the permit application form which it arose, shortly after its issue. That Association then commenced these proceedings under s.87 of the Planning and Environment Act 1987 (PE Act) seeking cancellation of the permit. The Association is concerned about fragmentation of rural land and the proliferation of houses on rural land. It would have objected on such grounds to the grant of a permit, had it been aware of the application.

2 To succeed with a request for cancellation the Association must establish one or more of the grounds under s.87 of the Act. In its request document it has sought to rely on those in s.87(1)(c) and (e). These grounds are material mistake in relation to the grant of a permit and failure to give notice of the permit application in accordance with s.52 PE Act.

3 It was convenient to consider, as a preliminary point, whether either of these grounds could be established. If one was to be established, there are other legal points to be raised (including the legal right of the Association to bring the proceeding) and possibly a substantial hearing in relation to the planning merits of the permit.

4 In the course of the hearing there was a careful examination of the basis upon which the Association claims to establish each of the two grounds relied upon. After the hearing the parties I determined that neither of these grounds could be established, and thus the request must fail on the basis that no ground under s.87 could be established.

5 The hearing involved a detailed consideration of matters relevant to the grounds relied on. In the course of the hearing, I gave my reasons for holding that neither ground was established and thus the request must be refused. Having given reasons orally, I do not propose to set out here in full what I said. I note that the proceedings were recorded. I will content myself here with a summary.

First Ground - s.87(1)(c): Material Mistake in Relation to Grant of Permit

6 The first ground that the Association sought to rely upon was material mistake in relation to the grant of the permit. Upon closer examination it was found that there was no mistake of fact or mistake of law being relied upon. Really the Association was asserting that it disagreed with the judgement made by the responsible authority in relation to the planning merits of the permit application. There was only a "mistake" in the sense that the Association thinks that some other decision, in the exercise of judgement on the planning merits of the proposal, should have been the result.

7 The permit holders, at this stage, are in possession of a permit. As far as I know, it is a valid permit. It confers certain rights upon them. Those rights can be taken away by the Tribunal if it cancels the permit. However, it can only do so if satisfied that there is a ground under s.87. I do not think that a mere disagreement with the conclusion come to by the responsible authority in the exercise of its discretion as to the planning merits of whether a permit should be granted or not, can amount to a material mistake within the meaning of s.87(1)(c). If it were otherwise, probably anyone could seek cancellation of a permit at any time, merely on the basis that he, she or it disagrees with the permit having been granted. It cannot be enough for a requestor to merely say that the requestor disagrees with the decision of the responsible authority and that this amounts to a sufficient mistake that would probably amount to an almost universal right of appeal under s.87 against existing permits enabling a review of the merits by the Tribunal merely on the basis of the requestor equating "mistake" with requestor disagreement. That cannot be the intention of s.87.

8 It may be that the permit could be impugned if the decision to grant it was so unreasonable that no responsible authority, correctly instructing itself and acting reasonably, could possibly come to the conclusion in fact reached in relation to the permit application. The case of Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 is usually quoted as the leading case in relation to the notion that an administrative decision that is as unreasonable as that can have its validity challenged by a court. It is not just a matter of a court (or, in a suitable case the Tribunal) substituting its view of what should be preferred to that reached by the administrative authority. To be "Wednesbury unreasonable" the decision must be one that is so unreasonable as not to have been open to the decision maker. A decision as unreasonable as that amounts to an error of law. If it were possible to show a defect of that sort, the appropriate course might be to seek a declaration of invalidity in relation to the permit granted.

9 In any event, there is nothing to suggest unreasonableness to that degree in the present case.

10 I therefore concluded that this first ground could not be made out.

Second Ground - s.87(1)(e): Failure to Give Notice Required by s.52 PE Act

11 The second ground relied upon is failure to give notice in accordance with s.52. In relation to that the Association made reference to a number of possible referrals to various authorities that could have been voluntarily made by the responsible authority. However, there is another ground under s.87, namely that found in 87(1)(f). This ground covers any failure to comply with s.55; in other words, any failure to make a referral required under the planning scheme. Questions of referral to referral authorities are really dealt with pursuant to s.87(1)(f) and s.55; not s.87(1)(e) and s.52.

12 Section 52 deals with the question of giving notice to people who may wish to object to the proposal. Section 52(1)(a) deals with the giving of notice to the owners and occupies of adjoining land. It is common ground that this provision was complied with. The argument is as to whether s.52(1)(d) was satisfied. That provision relates to the giving of notice to other persons, if the responsible authority considers that the grant of a permit may cause material detriment to them.

13 The responsible authority did consider that notice, pursuant to s.52(1)(d), was warranted in the present case. Firstly, it gave notice to certain people who are not the owners and occupiers of adjoining land. They received individual written notice.

14 Beyond that, further notice was given in the form of a sign placed on the land. Section 52(2) provides that, in relation to giving notice under s.52(1)(d), it may be given in all or any of three specified ways namely placing the sign on the land, the publication of a notice in newspapers generally circulating in the area of the land and the giving of notice personally or by post. Section 52(2)(b) also enables the responsible authority to give notice in any other way that it considers appropriate.

15 In this case a sign was put on the land. It is possible for a responsible authority to conclude that there may be persons other than the owners or occupiers of adjoining land who should be given notice under s.52(1)(d) without the responsible authority being able to identify and give such notice personally. A sign on the land, or a notice in the newspaper, is directed to people who may be covered by s.52(1)(d), whether or not the responsible authority is able to ascertain their identity.

16 In the present case there was no notice published in a newspaper, and no written notice was given, or sent through the post, to the Association.

17 The Association argued that this was a failure to comply with s.52. It was common ground that persons beyond the owners and occupiers of adjoining land may suffer material detriment. The argument boiled down to a question of whether direct notice should have been given to the Association, or whether it was sufficient that a sign be put on the land.

18 There had been a previous application, which the Association maintained was a similar one, although the responsible authority pointed to significant differences, that was determined in 2003. The Association had been an objector in that case. It had not been sent separate written notice of that application. I am informed that notice given in relation to that case was the same as in the present case, namely written notice to the owners and occupiers of adjoining land and some other neighbours, and a notice on the land. Obviously that earlier application came to the notice of the Association, and it objected.

19 The fact that it had been an objector, even if its notice of objection said or implied that it would wish to object to any later similar applications, does not create a legal obligation on the responsible authority to remember such an observation and act upon it, two, ten or twenty years later if a "similar" application is made in relation to the land. The same thing applies in relation to "similar applications" in relation to adjoining or nearby land. It would create a great deal of uncertainty as to how and when notice should be given if people can refer to things dating back over many years or applications in relation to neighbouring land separated by varying and uncertain distances and circumstances.

20 The Association initially claimed that it had made representations to the planner handling the administration of the present case on behalf of the responsible authority, that it wished to have notice of any applications of this sort. There is some dispute between representatives of the Association and the planner concerned as to what was said or understood in relation to any such conversation. Ultimately that was not relied upon.

21 The Association did seek to rely upon a practice of the responsible authority in sending written notice to it, and apparently others, in some cases. I am informed that the responsible authority has not adopted any policy that the Association be advised of all or any particular class of applications. Its sending of such notices in such cases, might be regarded as an act of grace, or "going the second mile", rather than a fulfilling of a legal obligation. I do not think that the Association is in a position to impose a legal requirement on the responsible authority for the authority to give the Association individual written notice of each and every application it receives, or each and every application within a certain class of application. The Association may have assumed, and relied upon it that it would receive written notification. It placed such reliance on "grace and favour" actions of the responsible authority at its own risk. If it wants to be sure of receiving notice of applications where it or its members are not owners and occupiers of adjoining land or may not see signs on the land or notices in the newspaper etc, then it probably needs to maintain a surveillance of the register that the responsible authority is required to keep in relation to permit applications that it receives.

22 I am informed that the council also publishes of notices of application on its website. That too goes beyond any requirement of the legislation. If the Association relies on that service, and there is some slip up, for example notice of some particular proposal not appearing on the website, then that would not amount, in itself, to a failure to comply with s.52.

23 To assist in examining the question of the responsibility of the responsible authority in relation to s.52 under such circumstances two hypothetical examples were considered in the course of discussion during the hearing. One was if a highly competent and conscientious planner came into the council offices as a locum, and did the work of a planner who was absent on leave. Such locum was presumed not to have knowledge of other cases for the responsible authority, or that had been before the responsible authority in recent years, or even the distant past. It can hardly be the case that the responsibility of the responsible authority, under s.52, and including the choice of giving notice under s.52(2), could extend beyond what such a capable and conscientious planner would deem necessary in the circumstances, provided that such planner acted reasonably.

24 The other hypothetical test was if the President of the Tribunal, or some member of the Tribunal acting under delegation from the President, was called upon to consider under s.83B PE Act what notice should be given of a permit application, for example if there was a review of a failure to grant a permit under s.79 PE Act where the responsible authority had not given any notice of the application. If I, for example, had been called upon to determine what notice should be given of this permit application under those circumstances, I would have no knowledge of a previous application in 2003, or a more recent application in relation to neighbouring properties, or of any "grace and favour" practices of the responsible authority of giving more notice than is legally required of it, and I would have no knowledge of the practice of publishing notice on the website. Looking at it from this point of view I would have required notice to be given to the owners and occupiers of adjoining land. I would also have required it to be given, as the responsible authority required it to be given, to the owners and occupiers of opposite land, across the road, and across the Diamond Valley Creek. Beyond that I would have required a sign on the land. I do not think I would have required a notice in a newspaper or newspapers circulating in the area. I do not need to decide that point, as it is not relied upon. I would not have required notice to be given to the Association.

25 The Association sought to put its case on the basis that it was just and reasonable that it should have been given notice. Perhaps it was. I do not agree with the suggestion of the officer that it would have been unprofessional for him to have given, or require the giving, of notice to the Association. I think it is a pity he did not do so in the circumstances. Saying that it is a pity, or to say that it would have been just and reasonable to do it, is not the same thing as saying that it was failure to meet the requirements of s.52 not to do it. In fact, the responsible authority did what I would have required. In the circumstances I do not find that it should have done more.

26 On that basis, I held that there was no failure by the responsible authority to satisfy s.52 by its failure to give separate written notice to the Association. Thus the second ground, under s.87(1)(e), could not be made out.

27 This left the Association without any ground under s.87. On that basis I announced that the request would be refused.

28 An application was made on behalf of the permit holders for an order for costs. As Mr. Sadler, who made the application, pointed out, the ordinary rule before this Tribunal is that parties must bear their own costs. That is provided for in s.109 of the Victorian Civil and Administrative Tribunal Act 1998. Nevertheless, that section does authorise the Tribunal to make an order that a party pay all or a specified part of the cost of another party if it is satisfied that it is fair to do so having regard to a number of criteria set out in s.109(3)(a) to (e).

29 In this connection Mr. Sadler sought to rely particularly on the considerations in s.109(3)(c) and (d).

30 The second of these is the nature and complexity of the proceeding. He pointed out that there are certainly complexities about the current proceeding, in relation to the points determined as preliminary points, and more generally. That is true. However, I do not think that the nature and complexity of the proceeding necessarily means that a departure from the ordinary rule is more probable, even in enforcement order cases, where orders for costs have been more readily made. The presence of an arguable case, or a test case, or complexity in the proceeding has been more likely to be taken as a reason for not making an order. Such cases can be recognised as proceedings where there was a fair issue requiring determination.

31 The same thing might be said in relation to s.109(3)(c). That consideration involves the relative strength of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis of fact or law. Mr. Sadler pointed out that I had just determined that the request was not tenable in law because none of the grounds could be established.

32 That is not to say that there was not a seriously arguable case, particularly in relation to the second ground. In fact quite lengthy examination of questions involved was necessary and, in my opinion, warranted, in all the circumstances. It was not as though the Association had brought an untenable case thereby occasioning unwarranted and unreasonable expense for the permit holders in defending their permit.

33 The Planning and Environment Act 1987 makes provision for participation in planning decisions by third parties, and, I think it is fair to say that in many respects it encourages such participation. The Association, in this case, missed out on its opportunity to participate when it did not receive timely notice of the application. By the time it knew of the application, it was too late in that a permit had been issued. It then sought to recover its position by the only means available to it. I do not see any abuse of the process on behalf of an Association which would appear to be (and as far as I know is) a conscientious group of people seeking to protect and enhance sound town and country planning.

34 The notion that each party should pay their own costs, or ordinarily should do so, involves the notion that such participation should not be discouraged by the threat or fear of orders for costs being made against parties who take up the opportunity that the legislation affords them. It is different if, by unreasonable or untenable proceedings other parties are put to unwarranted expense. I do not think that that is the case here. Thus, I was not satisfied that there was a basis for departing from the ordinary rule that parties must bear their own costs.

_________________

RUSSELL BYARD

SENIOR MEMBER